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On 27 and 28 September 2007, a commission formed on the initiative of the authors held its first meeting in Aarhus, Denmark to deliberate on its goal of drafting a "European Model Company Law Act" (EMCLA). This project, outlined in the following pages, aims neither to force a mandatory harmonization of national company law nor to create a further, European corporate form. The goal is rather to draft model rules for a corporation that national legislatures would be free to adopt in whole or in part. Thus, the project is thought as an alternative and supplement to the existing EU instruments for the convergence of company law. The present EU instruments, their prerequisites and limits will be discussed in more detail in Part II, below. Part III will examine the US experience with such "model acts" in the area of company law. Part IV will then conclude by discussing several topics concerning the content of an EMCLA, introducing the members of the EMCLA Working Group, and explaining the Group's preliminary working plan.

This paper will sketch out some of the developments in European company law as seen from the current moment, which might be referred to as post- 2003 Action Plan, and from my purely personal viewpoint. I will thus restrict myself to presenting the current and expected legislative projects of the EU, with particular focus on the plans and activities of the Commission, and for the moment bracket out both a number of important and interesting decisions of the European Court of Justice and the debates among European legal scholars.

The attitude expressed by Carl Fuerstenberg, a leading German banker of his time, succinctly embodies one of the principal issues facing the large enterprise – the divergence of interest between the management of the firm and outside equity shareholders. Why do, or should, investors put some of their savings in the hands of others, to expend as they see fit, with no commitment to repayment or a return? The answers are far from simple, and involve a complex interaction among a number of legal rules, economic institutions and market forces. Yet crafting a viable response is essential to the functioning of a modern economy based upon technology with scale economies whose attainment is dependent on the creation of large firms.

The corporate governance Systems in the U.K. and in Germany differ markedly. German large firms have a two-board structure, they are subject to employee codetermination, their managements are not confronted with public hostile takeover bids, and banks play a major role in corporate governance, through equity stakes, through proxies given to them by small investors, and through bankers positions on the supervisory boards of these firms. One of the main issues of corporate governance in large firms, the Problem of shareholders passivity in monitoring management in Berle-Means type corporations, is thus addressed by an institutional Provision, the role of the banks, rather than by a market-oriented Solution as we find it in the U.K. with its market for corporate control through the threat of hostile takeovers. These two different approaches to corporate governance have been compared several times recently, and it was argued that a bank-based or institutional Solution has clear advantages and should be preferred. Cosh, Hughes and Singh, for example, argue at the conclusion of their discussion of takeovers and short-termism in the U.K. that the institutional shareholder [in the UK] should take a much more active and vigorous part in the internal governance of corporations. . . . In Order for such a proposal to be effective both in disciplining inefficient managements and promoting long-term investments, far reaching changes in the internal workings and behaviour of the financial institutions would be required. The financial institutions would need to pool their resources together, set up specialised departments for promoting investment and innovations - in other words behave like German banks. The following remarks seek to continue this discussion from the German perspective. The article will first attempt to evaluate the monitoring potential of our domestic bank or institution-oriented corporate governance System and then, in a further patt, compare it with that of a market-oriented Solution. lt will be argued that both Systems focus on different Problems and have specific advantages and drawbacks, and that there are still quite a few puzzles to be solved until all pros and cons of each of these monitoring devices tan be assessed. The perception that both Systems focus on different Problems suggests combining institutional monitoring with a market for corporate control rather than considering them to be contrasting and incompatible approaches. The article is organized as follows. Section II will describe the legal structure of the large corporation in Germany in more detail. Section Ill explains why a market for corporate control by the threat of public hostile takeover bids does not exist in Germany. Section IV then Shows how corporate governance in publicly held corporations with small investors is organized instead, and deals with the role of banks in corporate governance in these firms. Section V of the atticle then will try to compare the monitoring potential of a marketoriented and our bank or institution-oriented corporate governance System. Concluding remarks follow.

In early 1991 the United States Treasury Department of the Bush Administration recommended in ib proposal for Modemizing The FinancialSystem l that, in addition to other remarkable breaks with the traditional United States financial Services framework, the current bank holding Company structure be replaced with a new financial Services holding Company that would reward banks with the ability to engage in a broad new range of financial activities through separate afbliates, including full-service securities, insurance, and mutual fund activities. The Treaaury Department pointed out that commercial banking and investment banking are complementary Services and that the Glass-Steagall Separation was unnecessary. The Treasury Department gave many reasons for the need for financial modernization and why such a modemized System would work better. As an example that demonstrates the advantages of the System proposed by the Treasury Department, the proposal pointed to the German banks and called the German model of a universal banking System the most liberal banking System in the world. -What makes the German universal banking System so unique and desirable? The following outline of the history and the current structure of the Getman banking System is intended to give readers a background tc determine whether the German banking System could be a model for the System of the future.

The task of this Paper as originally described in the outline of the current project was to compare the German banking System, as one type of relationship banking , with the Japanese main bank System. This was, of course, not simply meant in the sense of a mere description and comparison of different institutions. A meaningful contribution rather has to look at the functions of a given banking System as a provider of capital or other financial Services to their client firms, has to ask in what respect the one or the other System might be superior or less efficient, and has to analyze the reasons for this. Such a thorough analysis would have to answer questions like, for instance, to what extent investment is financed by (lang or short term-)bank loans, whether German banks have, because of specific institutional arrangements like own equity holdings, seats on Company boards or other links with their borrowers, informational or other advantages that make bank finance eheaper or easier available; how such banks behave with respect to financial distress and bankruptcy of their client firms, and what their exact role in corporate governance is. While preparing this Paper I found that in Order to give reliable answers to these questions there had to be several other conferences comparable to the present one that had to focus exclusively on our domestic System. Hence what this Paper only tan provide for at this moment is a short overview of the German banking System and its special t r a i t s ( Universalbankensystem and Group Banking ; part I), describe and analyse some aspects of bank lending to firms (Part II), and the role of German banks as delegated monitors in widely held firms (Part Ill). A description of the historical development of the specific links between banks and industry and their impact on the economic growth of Germany during the period of the industrialization and later on would be specifically interesting within the framework of a Conference that discusses the lessons and relevante of banking Systems for developing market economies and for transforming socialist economies. However, historical remarks had to be omitted completely, not least because of lack of own knowledge, time and space, but also because this history is already well documented and available in English publications, too.

Other than in Belgium, German banks may hold even controlling equity participations in industrial firms (and such firms may own banks) and do so to a large extent. Vis-a-vis the European development this leads to two questions: From the perspective of the (Belgian and other) competitors of these banks, whether their own domestic System might be disadvantageous to them. And from a public interest perspective, which advantages and drawbacks are connected with the different regulations in Europe. The article first informs about the legal framework and some statistical facts. Then the various and different reasons why banks acquire and hold shares on own account are analyzed. The following Parts deal with the various public policy arguments whether equity links between banks and industrial firms should be prohibited or not (safety and soundness of banking; autonomie de Ia fonction bancaire ; abuse of confidential information and conflicts of interest; antitrust considerations; negative and positive impacts on the respective firm). In its last part the article deals with recent proposals in the German political debate to limit stockholdings of banks. The article argues that a step-by-step approach to the Single Problems and issues (conflict of interests; anticompetitive effects etc.) should be preferred to a general limitation of stock ownership of banks.

In my following remarks I will focus on a differente which we find in German law as well as in other legislations, the differente b e t w e e n entrepreneurial investments among firms and merely financial investments. Whereas OUT law of groups of companies o f Konzernrecht contains quite an elaborated set of rules, the rules governing financial investments, especially Cross-border financial investments, seems to be somewhat underdeveloped.